U.S. v. Nash, 71 M.J. 83

First Principles: Constitutional Matters: Right to a Jury Trial

1. an accused enjoys the right to an impartial and unbiased panel; this right is provided in the military justice system by the Constitution, federal statutes, regulations and directives, and case law

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case
2. the Rules for Courts-Martial provide that military judges must remove any member who has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged
3. while the military judge is in the best position to judge the demeanor of a member, in certain contexts, mere declarations of impartiality, no matter how sincere, may not be sufficient

Military Justice Personnel: Military Judge: Discretion

1. the military judge abused his discretion when he did not excuse a member for actual bias after that member asked the accused’s wife, who was testifying on the merits in a court-martial involving the accused’s alleged sexual misconduct with children, if she thought a pedophile could be rehabilitated; the member’s question suggested before the close of the evidence that the member believed the accused was a pedophile who committed the crimes he was charged with and that the member might believe that pedophiles cannot be rehabilitated; and after further voir dire of this member, because the member did not state a clear rationale for asking the question, his rationale was inadequate to resolve the question of bias and did not relieve the concern that the member had made up his mind; in addition, the member’s question demonstrated that he had not kept an open mind until the close of evidence as required by the military judge’s preliminary instructions and that he could not yield to later instructions to keep an open mind

Military Justice Personnel: Court Members: Generally

1. a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case
2. the right to an impartial and unbiased panel is upheld through military judges’ determinations on the issues of actual bias, implied bias, and the mandatory disqualifying grounds in the RCMs that preclude persons from serving on a panel
3. the Rules for Courts-Martial provide that military judges must remove any member who has formed or “expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged
4. while the military judge is in the best position to judge the demeanor of a member, in certain contexts, mere declarations of impartiality, no matter how sincere, may not be sufficient
5. the requirement for an impartial panel provides that all members follow the military judge’s jury instructions

Military Justice Personnel: Court Members: Challenges for Cause

1. a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case
2. actual bias and implied bias are separate legal tests, not separate grounds for a challenge
3. the right to an impartial and unbiased panel is upheld through military judges’ determinations on the issues of actual bias, implied bias, and the mandatory disqualifying grounds in the RCMs that preclude persons from serving on a panel
4. in the case of RCM 912(f)(1)(M), which encompasses actual bias, a member must be excused when he or she has informed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged
5. actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial
6. the issue of implied bias generally arises during the voir dire phase of a court-martial; however, it is important to keep in consideration that the issue can arise at any time during the trial; therefore, it is incumbent upon military judges to tailor the application of the implied bias test to the context presented
7. while the military judge is in the best position to judge the demeanor of a member, in certain contexts, mere declarations of impartiality, no matter how sincere, may not be sufficient
8. the military judge abused his discretion when he did not excuse a member for actual bias after that member asked the accused’s wife, who was testifying on the merits in a court-martial involving the accused’s alleged sexual misconduct with children, if she thought a pedophile could be rehabilitated; the member’s question suggested before the close of the evidence that the member believed the accused was a pedophile who committed the crimes he was charged with and that the member might believe that pedophiles cannot be rehabilitated; and after further voir dire of this member, because the member did not state a clear rationale for asking the question, his rationale was inadequate to resolve the question of bias and did not relieve the concern that the member had made up his mind; in addition, the member’s question demonstrated that he had not kept an open mind until the close of evidence as required by the military judge’s preliminary instructions and that he could not yield to later instructions to keep an open mind

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. appellate courts will review a military judge’s ruling on a challenge for cause for actual bias for abuse of discretion
2. because a challenge based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference
3. great deference that is afforded a military judge’s ruling on actual bias of a panel member is not a separate standard; rather, it is a recognition by appellate courts that the legal question of actual bias rests heavily on the sincerity of an individual’s statement that he or she can remain impartial, an issue approximating a factual question on which the military judge is given greater latitude of judgment; the standard, however, remains an abuse of discretion